A major criticism made by the defence barristers in the Jobstown trial was not that Garda witnesses offered evidence that was contradicted by video evidence, but that in relation to one matter in particular, three Garda witnesses gave the same “wrong” evidence.
The point was raised by Solidarity TD Paul Murphy's defence counsel, Seán Guerin SC, on June 26th, in a submission to Judge Melanie Greally in the absence of the jury.
He said that Supt Daniel Flavin, Insp Derek Maguire and Sgt Michael Phelan had used the same incorrect phrase when describing something they said they had heard Murphy say. When multiple witnesses gave the same inconsistent testimony, "an issue arises as to how that is," Guerin said.
In his address to the jury, Guerin referred to Garda witnesses saying they had heard Murphy “say this sinister and frightening thing which he simply did not say”.
The “sinister” remark was one that the Garda witnesses testified to having heard Murphy say at about 2.30pm on Fortunestown Road, Jobstown, on Saturday November 15th, 2014.
By 2.30pm Joan Burton and her then assistant, Karen O'Connell, had been trapped inside first a Garda Avensis and then a Garda 4x4 for almost two hours. Their desire to leave the area was being frustrated by angry water charges protesters. The Garda public order unit was about to be called in.
Loudhailer
During the trial Insp Maguire, in response to Seán Gillane SC, for the prosecution, said he had asked Murphy to use his loudhailer to urge the protesters to leave the area. “He then went on to the loudhailer and said to the crowd: ‘We are going to hold a democratic vote. Will we let her go or will we hold on to her for the night?’ And the general shout back from the crowd was: ‘Hold onto her.’”
A week later, Insp Maguire was questioned by Guerin about the matter. He confirmed that he had heard Murphy refer to keeping Burton there “for the night” and said that at the time he would have been about ten feet away from the politician.
Guerin then played some footage to the court. The footage had been sourced by defendant Michael Murphy, a Solidarity councillor, from a person who had been at the protest and who had uploaded to Facebook a video he had made with his phone. In the video Murphy can be seen addressing the crowd about taking a vote.
“There is two different options. One option is we march her from here to get out in half an hour. Right? And the other option is that we just keep her here. Okay?”
The reference to half an hour was the estimate as to how long it would take to continue to “slow march” the 4x4 to a nearby bypass, at which stage, it was envisaged, the women would then be let leave.
“We get one speaker for each side and then we take a vote, and then that is what we do,” Murphy said.
A woman said that she was from Killinarden and was proposing “that we keep Joan here. Joan Burton is on our turf now and she is staying until we say.”
Cllr Mick Murphy then speaks in favour of the "slow march" option. When the "vote" is taken, the two Solidarity politicians support the councillor's proposal by a show of hands, but the crowd, by acclamation, sides with the woman from Killinarden.
Paul Murphy says: "It doesn't matter, I'm going to do whatever people decide", but asks that there be a second vote as many people did not vote the first time round. The same result ensues.
Later, after the public order unit has arrived, Paul Murphy is involved in another address to the crowd. There is no instance on video of Murphy referring to keeping Burton “for the night”.
Insp Maguire said that all that “stood out” to him at the time was the comment he recalled hearing of Murphy referring to keeping Burton “for the night”.
Supt Flavin gave similar evidence of hearing Murphy address the crowd. Murphy, he said, addressed the crowd on the loudhailer. “Will we let her go or will we keep her here all night?”
Later, in response to Guerin, the superintendent said the comment was in his statement because he had taken a note of it. He accepted, having seen the video, that his recollection of the episode was “incomplete”.
Sgt Phelan told Gillane that he had been standing by the driver’s side of the 4x4 when he saw Murphy address the crowd and suggest a “democratic vote” about whether to march Burton to the bypass “or keep her here for the night”, or words to that effect. The crowd, he recalled, cheered and jeered.
“It was at that point I realised our day was about to become an awful lot longer,” he said.
Garda footage
Crossed-examined by Conor McKenna, for Paul Murphy, he said it was his recollection that Murphy was not using a loudhailer when addressing the crowd. McKenna pointed out that Garda logs of Garda helicopter footage recorded Murphy using a loudhailer and addressing the crowd at around 2.30pm. Phelan said he was not aware that the trial had already seen video footage of the “vote”. Phelan said it wasn’t his recollection that Murphy was using a loudhailer, but if it was on the footage, he accepted it.
The Jobstown trial involved footage from CCTV, people’s smartphones, RTÉ footage, and footage from the Garda helicopter (which has no audio). Judge Greally, in her charge to the jury, said the video footage was the primary evidence, and was not subject to “human frailties”, while adding that there could also be relevant events that had not been videoed.
Gillane, in his address to the jury, made the point that, in his view, there was “little dispute or difference” about the broad picture of what had happened on the day in question.
In relation to the 2.30pm “vote”, he argued that the choice was “between keeping her [Burton] here or letting her go”. The idea was “predicated on the basis that a decision will be taken by others about her [Burton].”
The jury found all the defendants not guilty of false imprisonment, the charge being that they had deprived the two women of their liberty, without their consent, by way of a joint enterprise involving themselves and others, and did so with intent.
