A JUDGE has “reluctantly” dismissed a theft charge against a Newcastle West man accused of burgling the rural home of two elderly brothers, after his defence argued that he had been allowed in to the residence, and was not trespassing.
Michael Kenneally, aged 22, of Sharwood, Newcastle West had pleaded not guilty to the offence of burglary at Knockdromin, Croagh on June 3, 2012.
Newcastle West Court heard last Friday that Kenneally was captured on hidden CCTV entering the house and talking to the 91-year-old occupant while an accomplice searched a number of rooms and took a wallet.
However the case was thrown out of court on a technicality, namely the fact that Kenneally had knocked on the door and was allowed in to the house, and was therefore not considered to be trespassing.
State witness Anthony Shire, who is the sole carer for 91-year-old brothers William and Martin O’Brien, the occupants of the house, told the court that on one of his twice weekly visits there last June he asked “if they had any visits from people calling”.
Mr Shire said that following previous problems with suspicious callers to the house, gardai had recommended that hidden CCTV cameras be installed inside and outside the O’Brien home.
When Mr Shire was told on this occasion that two men had called to the house, he checked the recent CCTV footage which showed two men arriving in the yard. The footage then showed one of the men opening the door of the brothers’ car, which was parked outside, and searching the vehicle. Kenneally then knocked on the door and was allowed into the house.
Detective Garda Joseph O’Sullivan told the court that the camera footage “quite clearly” shows Kenneally “producing some sort of paper, showing it to the elderly man”. Kenneally stays at the door speaking to the man, while his accomplice is seen going in to other rooms.
Mr Shire said that the accomplice “did some search” in a cupboard, and also took a wallet from a mantelpiece, before putting it back again.
Mr Shire said that once he had watched the footage, which was downloaded from the camera to a laptop by his son, he called to Askeaton garda station and handed it over to gardai.
When asked by Insp Dermot O’Connor what business Kenneally would have had calling to the brothers’ door, Mr Shire replied “I certainly don’t think it would have been anything legal”.
The prosecution was about to show the CCTV video to Judge Mary Larkin when defence solicitor, Kate Cussen, objected that neither Mr Shire’s son or the garda who took the complaint were present in court to testify to the video’s authenticity.
Insp Dermot O’Connor admitted that this represented “a gap in the evidence”, and asked that the case be adjourned to allow for these two witnesses to attend court.
However Ms Cussen objected to the case receiving another adjournment, stating that it had been ongoing for a number of months, and that Kenneally remains subject to “extremely onerous” High Court bail conditions. The judge replied “don’t expect me to feel sympathy for any bail conditions in a case like this”.
The court heard that neither of the elderly brothers is in a position to travel to court and give evidence in the prosecution. Ms Cussen said that “the State’s whole case is Mr Shire’s evidence. There is no evidence to be submitted by the alleged victim”.
Ms Cussen also pointed out that burglary, under the wording of the Criminal Justice (Theft and Fraud Offences) Act, is described as trespassing in a building causing or having the intent to cause an arrestable offence.
Ms Cussen said that the prosecution had acknowledged that Kenneally had been allowed in the house, and had only stood at the door while his accomplice searched the property.
Ms Cussen said that being allowed in and standing at the door amounts to “no evidence of an arrestable offence”. Kenneally’s co-accused is currently before the court facing burglary charges in connection with the incident.
Judge Larkin said that she had been prepared to grant an adjournment for the entering of the CCTV evidence. However, on the basis of Ms Cussen’s submission on the wording of the Theft Act, she said that she had to “reluctantly” dismiss the charge against Kenneally.