Abigail Rieley

Writer and Author

A Question of Self Defence

Brendan O’Sullivan’s family started to sob as the jury filed back into the courtroom.  O’Sullivan himself glanced over at his wife Claire whose eyes never left him as the verdict was read out, even as the tears started to stream down her face.

O’Sullivan, a 25-year-old father of two little girls, with an address at 10 O’Gorman St, Kilrush, Co. Clare had shot his neighbour Leslie Kenny four times in his own front garden.  Kenny died at the scene.  He had one shot to the right side, another to his right hip and, after O’Sullivan had reloaded the shotgun, shots to each knee.

O’Sullivan’s defence was that he had acted in panic to protect his wife and daughters after Kenny had threatened to slit their throats and burn the house down on a previous occasion.  The gun, it was heard during his week long trial, had come from his cousin, taken in because she feared her estranged husband would use it to kill himself.

Kenny had a string of previous convictions, 82 of them for crimes like burglary and assault.  He had been arrested on numerous occasions for the possession of dangerous weapons including knives, a hammer and a syringe.  In the euphemistic terms often heard in court he was “known to gardai”.  Witness after witness testified that he brought fear to the heart of the Kilrush community, threatening people refused to share their prescription drugs with him or who crossed him in any way.  He was an “unpredictable” character, widely known and widely feared.

O’Sullivan’s sister in law had testified for the defence that Kenny and his girlfriend had climbed unbidden into the car in which she was sitting with her partner, outside the AIB in Kilrush.  He had threatened to slit her nieces’ throats, she told the jury, and to pour petrol through the letterbox of the O’Sullivan house and light it while the family slept.

It’s a hard thing, here in Ireland, to speak ill of the dead.  The instinct to gloss over old faults once life is extinguished is hardwired into the Irish psyche.  But with this trial it had to be done.  Kenny had to be painted as black as possible if O’Sullivan’s actions were to be seen with any compassion.

The prosecution case didn’t seek to mitigate the character of Leslie Kenny but argued that no matter how bad a man he may or may not have been, his death was not lawful and more than that, was premeditated and with murderous intent.  They said that the shotgun Brendan O’Sullivan had got from his cousin was not being minded as a philanthropic act but was there for self defence.  They said that O’Sullivan had lured Leslie Kenny into his front garden that June morning and had taken the opportunity to murder him.

They disputed the defence theory that the placing of the shots suggested that O’Sullivan had been unused to guns and had not expected the kick of the gun which took his shots to their mark.  They said that the position of the wounds was consistent with O’Sullivan shooting as Kenny got up after the first shot and kept coming.  Shots to stop an aggressor but not aimed to kill.

It took the jury less than three hours to come back with their verdict.  Guilty of murder.  There was a shocked silence in the courtroom as the verdict was read out then the sobbing intensified as O’Sullivan’s family and friends clustered around him to hug him before he was lead away to start a life sentence.

The decision was perhaps not such a surprise.  While anyone could understand O’Sullivan’s fear for his young family, he had reloaded the gun, even if he had only shot Kenny in the knees with the second two shots.  The legal crime of murder is defined in the negative.  In Irish law an unlawful killing is not murder unless there is an intent to kill or cause serious harm.  With that intent there is an assumption that the accused knew the logical and probable results of his or her actions. 

Even so it wouldn’t be the first time an Irish jury had acquitted someone who defended their home with extreme lethal force.  The case of Co. Mayo farmer Padraig Nally is the most obvious one that springs to mind.  Back in 2005 he was convicted of the manslaughter of traveller John “Frog” Ward.  Nally had been terrified of Ward and had sat waiting for him with a loaded gun.

When Ward came onto his farm he snapped.  He beat Ward with a stick “like a badger” then shot him as he limped away.  He was sentenced to six years in jail. 

But in October 2006 Nally’s conviction was quashed with the appeal judges ruling that trial judge Mr Justice Paul Carney had been in the wrong when he had not allowed the jury to consider a defence of full self defence and had refused to allow them to reach a not guilty verdict.

The jury at the subsequent retrial did in fact find Nally not guilty and he is now a free man.  Earlier this year the government introduced new legislation that would allow the public to use “justifiable force” against an intruder.

O’Sullivan’s case might not have fallen with a defence of the home scenario but it does share certain characteristics with the Nally case.  Certainly, albeit having come into the trial late, I would have expected a manslaughter verdict rather than murder.  Obviously the jury disagreed.

Just before lunch today there was an indication of the way they might have been thinking then they requested certain pieces of evidence to be brought into the jury room.  They asked for a paper target found at O’Sullivan’s house and a mobile phone that had been found broken in a garda search during the investigation.

The problem was that neither the target nor the mobile phone were actually evidence in the case.  They had been gathered up and tagged as part of the garda investigation but did not form part of the prosecution case.  Once the jury were told they couldn’t have the items they were looking for and where sent to lunch the legal arguments began.

The defence wanted to know how on earth they had heard about the paper target, since it had not been in evidence.  They feared that it showed the jury were speculating on events in a direction the prosecution case had not gone and so were not heading towards a verdict based on the evidence in the case.  Just after lunch, before the jury were brought back to be formally sent to their deliberations, John Phelan SC, the defence senior counsel asked the the jury to be discharged.

Mr Justice Patrick McCarthy refused the submission and said that the jury should be trusted to do their job.  He had earlier refused to recharge the jury on the options open to them, those of murder, manslaughter and acquittal as the defence felt that the jury would not understand from his initial charge that the option of acquittal was open to them.

It remains to be seen whether there will be an appeal and if there is whether it will be successful but it’s hard not to see certain similarities with the Padraig Nally case here.

Brendan O’Sullivan’s family looked utterly devastated at the news, no matter how hard the reloading of the gun might have been to explain to any jury.  Outside the courts a short while after the verdict the family bumped into a small group of jurors, leaving after performing their civic duty.  There were angry scenes as the two groups waited for traffic lights to change from green to red.  Family members shouted at the jurors “He’s not guilty”.  The jurors looked shaken and hurriedly backed away from the crossing.  As the family moved away the jurors were in a huddle talking to one of the court gardai.  Several of them were visibly upset.

They’ve come to their verdict and presumably did so in accordance with the vows they had charged.  We have very strict rules in place to ensure that the jury’s verdict is inviolable and that’s as it should be.  But when a jury reach a unanimous decision on a murder conviction in such a short time it’s for the rest of us to wonder how they reached that decision. It remains to be seen what an appeal brings but one thing an appeal will not do is question that decision.  That’s the justice system we have.

3 Comments

  1. I have to wonder about using the reloading of the gun as proof of intent, as the wounds that killed the man were dealt prior to this. It would seem to me that it could be reasonable argued that while this might prove he was in a state of mind at that point to kill someone that it didn’t prove he was in this state prior to that when the first two fatal shoots were fired. That might be a argument the defence could have looked at. The problem is that most people who are subject to harassment and threats have no real protection from the state and that is our failing.

    I can’t help compare this verdict and the sentencing in Ennis where two men with a long list of previous convictions beat a man to death and got 4 and 5 years for manslaughter. One was on bail while the other was on temporary release. With the system of automatic remission and early release it is likely that one of these will be out in just over 2 years while the other will be out in under 4 years. In that sort of environment where if an assailant were to attack and kill someone they had been harassing that they would out in a few short years to harass their family again what course of action is a person going to be inclined to take?

  2. there was a grave injustice done in that courtroom , the jury foscused on something that was not in evidence and were swayed in their decision

  3. The definition of murder in this country includes the intention to cause serious harm. I think this had a lot of bearing. Multiple blasts from a double barrel shotgun can only have had that intention I think, whether he intended to kill or not, he intended to cause serious harm from which the victim died.

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