A man has been acquitted of acting to impede the apprehension or prosecution of his son for dangerous driving causing the death of a man in a hit-and-run in Co Kerry five years ago.
Dan Joe Fitzgerald (72), of Knockeen, Knockduff, Meelin, Co Cork, was found not guilty on the direction of Judge Seán Ó Donnabháin on the third day of his trial at Cork Circuit Criminal Court on a sole charge relating to the Garda investigation into the death of Paud O'Leary (42).
Dan Joe Fitzgerald had denied a charge that between July 1st and July 13th, 2012, he did an act or acts with the intention of impeding the apprehension or prosecution of his son, Shane Fitzgerald, for dangerous driving causing the death of Mr O'Leary.
Mr O'Leary, a father of four from Gneeveguilla, Co Kerry, was fatally injured when he was struck while cycling near his home early on July 1st 2012. On March 20th, 2015, Shane Fitzgerald, then 23, was convicted at Tralee Circuit Criminal Court and jailed for five years for dangerous driving causing the death of Mr O'Leary.
The State's case revolved around the use of Dan Joe Fitzgerald's AIB Laser Debit card by someone to book a ferry passage to the UK and on July 2nd to pay for a visa application and various travel documents for his son on July 3rd. The card was also used to pay for a flight to Australia on July 12th.
Transactions
But the judge said the State had failed to show that Dan Joe Fitzgerald was aware on July 2nd and July 3rd that gardaí were looking for his son as a person of interest in the case and therefore could not prove the first two debit card transactions were done to impede his son’s apprehension.
Dan Joe Fitzgerald only became aware on July 6th that gardaí wanted to speak to his son in relation to the fatal hit and run. However, the State had not produced any evidence to prove that he had any knowledge that his credit card was used on July 12th to buy the ticket to Australia.
The State was instead relying on inferences from the fact that Dan Joe Fitzgerald refused to explain how his debit card was used when he was arrested and questioned about the matter on July 30th, 2015.
But under the law inferences could not be used to secure a conviction on their own and could only be used to corroborate other evidence and yet in this case the State was relying more on inferences from Mr Fitzgerald snr’s repeated “no comment” replies than on any evidence.
“Unfortunately the strongest part of the State’s case was the inferences which is inverting the pyramid as the inferences should be the weakest part and only there to corroborate other evidence,” the judge said.
Allowing the case to go to the jury in these circumstances would be unsafe as it would involve the jury having to speculate as there was insufficient evidence to show that Dan Joe Fitzgerald had acted to impede the apprehension or prosecution of his son.
Earlier, the jury had heard evidence of a memo of a Garda interview with teh accused on July 30th, 2015, in which he would only confirm his name, address and date of birth and replied “no comment” to all other questions during an hour of questioning about the use of his debit cards.
