Court told witness ?unwilling to get out of prison van?

A LEADING Senior Counsel claimed at Cavan Circuit Court that there were people trying to prevent the course of justice and frustrate the trial of a South African man charged with assault.

 Barrister Anthony Salmon said he was apprehensive that there were elements at work seeking to limit the case that the DDP could proceed with.

 He was representing Neil Van Der Westhuizen, 101 Aughnaskerry Drive, Cavan, who was charged with assaulting Paul Smith at Aughnaskerry Drive on January 26 last.

 The accused has been initially charged with assault causing serious harm but having been re-arraigned he pleaded guilty to assault causing harm. He was sentenced to 18 months backdated to July 19 from the time he was on remanded. 

 Mr Salmon with Mr F Martin BL (instructed by Mr G Fortune solicitor) defending in the absence of the jury said there was a witness (Brendan Kelly) whom he wished to cross-examine but he was unwilling to get out of the prison van.

  The court was told that Mr Smith and Mr Kelly went to 101 Aughnaskerry Drive where the accused and his wife Kitty Kelly resided. Kitty was a cousin of Brendan. It was claimed that the accused assaulted his wife and that Brendan defended her.

  Mr Smith tried to stop it but got stabbed. Brendan got out a window and ran. Mr Smith was stabbed in the shoulder, hand,both lungs, stomach, chest and back. He managed to get out of the house but the accused followed him with a bigger knife.

  The accused stabbed Mr Smith three times in the back and kicked him while he was on the ground. Mr Smith asked Kitty to phone an ambulance but she wouldn't. He blacked out and the next he knew he was in an ambulance heading for Dublin.

  Mr Salmon told the court he would be handicapped if Mr Kelly did not present himself. Both Smith and Kelly were dangerous and violent men. Some are trying to limit the personnel that can come to court, which is wrong.

  They had a string of conviction themselves ranging from multiple assaults, dishonesty, burglary, larceny, public order, theft, motor offences and many more.

  Mr V Heneghan BL (instructed by R Hayden) said he could establish a 'prima facie' case without subterfuge. He added that there was no subterfuge and he could proceed with the case without those witnesses.

 Mr Salmon said the accused account of what happened was a complete variation of what had been heard. He pointed out that Mr Smith had 48 previous convictions and Mr Kelly had 57, while Mr Kelly was also convicted of having drugs for sale or supply.

 The accused would have claimed that both Smith and Kelly attacked him with knives and that he acted in self-defence. He had been in custody since July 26 and a week in January. The point Mr Salmon wanted to make was that it would be very foolish for anyone to accept a word of either Smith or Kelly.

Judge O'Hagan said a knife was used and it was used to stab a person. It didn't matter if Mr Smith was a hardened criminal or not he was entitled to his integrity and was not obliged to suffer a stabbing by a person with a knife.

  "Something awful happened in this house and I don't know what it was. The real fact is that this man was hurt and has suffered the consequences. Maybe it was drink fuelled, I don't know."  "The aggravated fact is that a knife was used while on the mitigating side the accused has pleaded guilty. I believed a custodial sentence is called for in this case and I do so principally because a knife was used."

  "I am sending him away for 18 months and I will give him credit for the time the accused has already spent in jail and will backdate it to July 19.''