A CONVICTED rapist who refused to allow gardaí to take his photograph, fingerprints or sample of saliva during an incident in Portlaoise Garda Station in which a garda had his finger broken, had charges of obstruction and assault causing harm withdrawn against him at the recent circuit court in Portlaoise.
The jury trial of Gerard Kane, Cabinteely, Dublin, and formerly of Dominic Street, Dun Laoghaire, ended in a nolle prosequi (a voluntary discontinuence of the charges by the State) at Portlaoise Courthouse on April 25. Defence for Kane, Mr Patrick Reynolds said that CCTV footage central to the State’s case showed gardaí “slapping” Kane’s arms down while in custody, which he claimed was an assault. Mr Reynolds also pointed out that the gardaí did not have authority to use reasonable force to obtain a saliva swab.
Kane, who last December was sentenced to 12 years with the last three suspended for raping a woman after breaking into her home in June 2011, pleaded not guilty to the charge of assaulting Garda Danial Tracy, and obstructing Garda Joanne Holahan as she attempted to obtain a buccal swab of his saliva. The alleged offences were committed at Portlaoise Garda Station on November 1, 2011.
The State’s case, as outlined by prosecutor, Mr Will Fennelly, was that while in custody, Kane become violent and unco-operative when gardaí tried to take his photograph, fingerprints and saliva swab. He lashed out and during the incident, Garda Tracy had one of his fingers broken.
Mr Philip Lyons, who was superintendent at Portlaoise Garda Station at the time, gave evidence that he was present in the interview room with Kane and four gardaí. Mr Lyons said that he was there “to ensure the members acted within reason” and used only reasonable force.
Mr Reynolds asked him what statutory authority did the gardaí have to take buccal swabs.
“No garda has the statutory authority to use reasonable force to take a saliva swab,” said Mr Reynolds.
“My understanding at the time was that for non-intimate swabs you can use reasonable force,” replied Mr Lyons.
“You had the rank of superintendent and were there to oversee, you should have known what your authority was,” said Mr Reynolds.
Mr Lyons again stated that he believed the gardaí could use reasonable force, however he admitted: “I don’t have the legislation in front of me.”
Garda Joanne Holohan next gave evidence, in which she told the court that Kane refused to sit down in the interview room and did not give his name and address. He also refused to give consent for the taking of samples. When she attempted to take a photograph of him, Kane covered his face with his hands. Garda Tracy and another garda tried to remove his hands, but Kane became very aggressive and struggled. Garda Holohan said that Kane “swung a box” at Garda Tracy and had to be restrained. As Kane was still struggling, Garda Holahan left the room to get further assistance from four extra guards. Kane was eventually removed and brought back to his cell.
Garda Holahan said that she believed she had statutory authority to use reasonable force to attempt to obtain a buccal swab.
Mr Reynolds informed her that the gardaí do not have the authority to use reasonable force to obtain such a sample. Garda Holahan replied that she thought they did. Mr Reynolds went on to say that no assault had been committed by Kane and it had been the gardaí who committed the assault.
“The initial contact between Mr Kane and the gardaí was them slapping his arms down,” he said.
“They took his arms down,” replied Garda Holahan.
“They didn’t ‘take’, they slapped,” retorted Mr Reynolds.
“I would say ‘take’,” replied the garda.
Garda Danial Tracy also gave evidence, telling the court that Kane punched him in the interview room.
“He was kicking and making attempts to bite, he was making all kinds of threats,” said Garda Tracy.
The garda went on to say that the middle finger of his left hand was broken in the struggle.
“You knocked down his arm,” said Mr Reynolds.
“No, his arm was out. It might look (on the CCTV footage) like a slap, but I was trying to straighten his arm,” said Garda Tracy.
“The only assault was your colleagues on Mr Kane,” said Mr Reynolds.
“I totally disagree,” said Garda Tracy.
On the second day of the trial, Mr Fennelly told Judge Tony Hunt that the director of public prosecutions was not proceeding with the case. The charges were then withdrawn against Kane.