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Sunday 8 December 2019

Garda guilty after punching man twice while making arrest

Garda Kevin Curran said he had acted in self-defence
Garda Kevin Curran said he had acted in self-defence

A Dublin garda used "excessive force" when he punched a man during an arrest outside a shopping centre, a court has found.

Garda Kevin Curran was found guilty of assaulting Ben O'Dwyer, who is in his early 20s, by striking him twice as he was being restrained on the ground.

Judge Alan Mitchell adjourned the case for a victim impact statement.

Gda Curran pleaded not guilty to assaulting Mr O'Dwyer at Ballyowen Shopping Centre, Lucan, in October 2016.

He maintained he feared for his safety, acted in self-defence and used "reasonable and proportionate" force.

Takeaway

The case was brought by the DPP on behalf of the Garda Siochana Ombudsman Commission (GSOC).

Dublin District Court heard Gda Curran was stationed at Ronanstown and was an observer in a car driven by Garda Colm Harrington, along with Garda Laura Rudden, a probationer at the time.

Mr O'Dwyer said he and three friends had been golfing before they went to get takeaway food.

They were outside Lidl when the officers drove over and "shouted at us to move" so they went to sit on a wall and were told to move again, he said.

Mr O'Dwyer told the gardai they had not done anything wrong and "the bald garda [Gda Curran] said, 'You have two minutes to move or else'," he claimed. Gda Curran pushed him when he went to walk away, he said.

"I said, 'Why are you pushing me?'." He said he was grabbed, slipped out of his jacket and was thrown to the ground.

Gda Curran punched his upper back, he said. Asked why he was hitting him, Mr O'Dwyer said the accused replied: "I'll spray you if you are not careful" and hit him again.

Mr O'Dwyer said he covered his face and told the garda he was not resisting.

In cross-examination, he said that while he had queried the reason for the garda's order, he obeyed it and was "manhandled". He denied he had been concealing his hands and reaching toward his waistband.

Cathal Maher said he saw "the bald garda" hit his friend Mr O'Dwyer twice. Mr Maher filmed it on his camera and footage was shown to the court.

Gda Curran did not give evidence but told GSOC investigators the gardai had explained to the men there was an issue with antisocial behaviour in the area. When they moved to the outer wall, they were directed to leave.

Mr O'Dwyer "said he wasn't going anywhere and would move in a few minutes", Gda Curran told GSOC.

When Gda Harrington told Mr O'Dwyer to stand, he stood and said: "F**k off, you retard", Gda Curran stated.

He said Mr O'Dwyer tried to run away from Gda Harrington but got out of his jacket.

Gda Curran grabbed him and they both ended up on the ground, he said. He also said he became concerned that Mr O'Dwyer had a weapon.

He saw Mr O'Dwyer's friends come closer and felt "threatened and vulnerable".

He was concerned for his and his colleagues' safety.

It was too close to use pepper spray and he did not think baton use was appropriate so he struck Mr O'Dwyer "with a closed fist strike to the side to gain compliance" to handcuff him and get him off the ground, he said.

He did not comply so he "struck him once more to the side with a closed fist".

After a struggle, they got Mr O'Dwyer to his feet. There was no weapon on him.

Gda Curran believed the punches were "reasonable and proportionate" to the threat posed.

Sticky

Gda Rudden said she tried to keep Mr O'Dwyer's friends back. The situation was intimidating and if they had got more aggressive the officers would have been in a "very sticky situation".

Gda Harrington said Mr O'Dwyer had made a "concerted effort" to get away and as they struggled he felt in a "vulnerable position" and the gardai were "outnumbered".

Mr O'Dwyer was a "strong individual", he said.

Defence barrister Breffni Gordon said it was suggested the group were "nice boys" who had lawfully questioned the gardai but in the video "their behaviour was appalling".

Mr O'Dwyer used "considerable physicality" in resisting arrest and posed an "immediate danger", he said.

Gda Curran's assertion that he acted in self-defence because he was in fear was "unchallenged", Mr Gordon said.

State solicitor Jonathan Antoniotti said the prosecution case was that excessive force was used.

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