Midlands businessman prosecuted
A CORK man told Tullamore District Court he feared for himself when an Offaly businessman raised a steel tube in his presence during heated exchanges over a €140,000 debt.
Seamus Kane, 55, Holmshill, Blueball, Tullamore was convicted of producing an article capable of inflicting injury and likely to intimidate another, in the course of a dispute at Palfinger Ireland Ltd, Church Road, Tullamore on June 28, 2019.
Mr Kane had previously pleaded not guilty to the offence, resulting in a day-long hearing before Judge Catherine Staines at the District Court on Monday.
Sixty-year-old Eamonn Brien, Kinsale, Co Cork, director of shopfitting business Storefit, told the court he called to Mr Kane's place of business on the date of the offence because he was owed €140,000 since the previous year.
Mr Brien said he had previously been abused verbally over the phone by Mr Kane about the matter and numerous meetings had been cancelled.
The debt related to work done by Storefit at a Spar shop owned by Mr Kane opposite the GAA pitch in Tullamore. Mr Brien said the work had been completed in 2018 to the satisfaction of the BWG group (owners of the Spar group).
He and Mr Kane had quite a heated discussion the evening before about the debt and the accused told Mr Brien he could not meet him because he would be driving a truck to the UK.
Mr Brien said he decided to drive to Tullamore on June 28, 2019 to meet Mr Kane and when he arrived he was told that the accused was at a meeting down town but was expected back.
Mr Brien waited in his car across the road and less than an hour later when he saw Mr Kane arriving he entered the building and was told by the ladies he had spoken to earlier that the defendant was not yet back.
Mr Brien said it was possible they had not seen Mr Kane return. He said he was brought to the workshop by another man and he saw Mr Kane there near a truck but the accused did not recognise him because they had only met on one or two occasions previously.
Mr Brien introduced himself, saying he was from Storefit and he wanted to discuss the debt.
He said he was told by the accused to “get the f... out of here” and was threatened by Mr Kane who stood less than two feet away from him with an iron bar.
He said he told Mr Kane he was “some big fellow” threatening an older man with a four-foot long iron bar and said he feared for himself “the way he was wielding it behind his head”.
Mr Brien was cross-examined by Alan Toal, BL (instructed by Patrick Fox, Hoey & Denning solicitors) who put it to him that there were issues with the job done by Storefit, for which Storefit had initially been paid a 25% deposit and Mr Kane was holding back the balance.
Mr Brien said there were no issues with either the franchisor or Storefit and the franchisor had signed off on all the work. He said he had no snag list in relation to the store.
Mr Brien also said he had previously worked with Mr Kane on a Spar shop at Patrick Street in Tullamore for a “smaller contract” in the order of €25,000 and everything went very well and it was done properly and paid for, unlike the second job, which was done properly and not paid for.
He rejected a suggestion from Mr Toal that the bigger job had not been done properly and said there were no records of any faulty workmanship.
He said that on one occasion Mr Kane had instructed that the Storefit invoice be made out to a different company so that he could pay the full amount the following day.
Mr Brien said they checked that company with the Companies Office and found that it was practically worthless. He said there is a civil case pending in relation to the debt dispute.
When Mr Toal asked if he had made a statement to the gardai, Mr Brien said he had gone to the gardai first on June 28 and told them he had been physically threatened and notified them that he was going to Mr Kane's premises to “collect money peacefully”.
When the guard he spoke to asked if someone should be sent with him, Mr Brien declined and said he “should be fine”.
Mr Toal put it to Mr Brien that a woman working in accounts at Palfinger, Yvonne Warren, met him at the premises and would say he had been abrupt and brisk. Mr Brien replied that he may have been possibly slightly agitated because he was surprised to be told Mr Kane was not back yet, even though he had seen him return.
In further cross-examination by Mr Toal, Mr Brien said Mr Kane had gone to a different part of the metal fabrication workshop and then came back and held the iron bar over his head.
When Mr Toal put it to him that CCTV did not support that claim, Mr Brien said he had not seen the footage but the bar was held over his head.
Evidence of a court warrant being obtained on July 24, 2019 so gardai could obtain CCTV footage from Palfinger was given by Sergeant Pamela Nugent.
Sergeant Nugent said that two days later gardai went and met Mr Kane, the proprietor of Palfinger, and the CCTV was downloaded to a USB stick by Garda Darren Hughes, with the assistance of Mr Kane's electrician.
Garda Hughes told the court he kept the CCTV evidence locked in his own locker at Tullamore Garda Station. At a later date Mr Kane handed him a third file of CCTV from a different angle.
Judge Staines then viewed footage on a laptop and said she saw a person pointing out Mr Kane to Mr Brien and when they were speaking to each other a truck obstructed the view of both of them.
In the first clip, Mr Kane could be seen walking over to a pile of iron bars, picking one up and then walking over to Mr Brien but because of the truck, what transpired could not be seen.
Mr Kane could then be seen throwing the iron bar away and it was clear that both parties were remonstrating with each other.
Judge Staines said a second clip showed Mr Kane lifting the bar up, raising it over his head and banging it. This did not happen beside Mr Brien but in her view Mr Kane had raised the bar “in a very threatening way”.
A third recording was from a different angle and Judge Staines said Mr Kane could be seen walking over with the iron bar, remonstrating with Mr Brien and then throwing the bar away.
The CCTV was then viewed by Mr Brien and Mr Toal and when defence counsel said the witness had abused Mr Kane back when they were speaking, Mr Brien stated he did ask one of the employees present if they got paid that week because there was a possibility his staff would not get paid because of the amount of money outstanding.
He rejected an assertion from Mr Toal that he had threatened Mr Kane or mentioned that he knew where the accused and his family lived.
Mr Brien said during the exchanges he had mentioned another man from a different Midlands county who was “in the news at the time”, saying that he would make the accused look like Cinderella.
Mr Toal then questioned Mr Brien about legal proceedings which had been issued and the witness said they had been issued to Seamus Kane because the accused had been seeking to change the invoices to Cayenne Holdings. Another company, Coco Fuels, had also been added to the proceedings after receipt of an affidavit from Mr Kane.
When Mr Toal put it to Mr Brien that he had stood his ground during the exchanges in the workshop, the witness said he had not “run out the door” but he had been very much intimidated by what had happened and it was still affecting him months later.
He also said he had not given as good as he got because he did not have an iron bar in his hand.
Mr Toal then introduced text messages and emails in relation to the matter, including a text from Mr Brien to an executive at BWG Spar head office on June 27, the day before the offence, referring to Mr Kane owing €144,000 and a “list of problems” at Spar in Tullamore.
In the text, which he copied to Mr Kane, Mr Brien said he was most surprised to hear this and he asked the recipient of the text to forward to him anything he was aware of.
Mr Brien told the court that the first time he was told about issues with the store was on June 27 when he had a phone conversation with Seamus Kane.
He also said he sent a message in the Irish language to Mr Kane at 11.10pm on June 27 following a phone conversation at about 9pm where the accused said he wouldn't be in Tullamore the following day because he was driving a truck to the UK.
Mr Brien said the English translation of the text was
“Good night Seamus, I hope your head sleeps easy on your English pillow” and he had sent the text in Irish because in an earlier conversation the accused had “thrown in one Irish word”.
The next witness for the prosecution, Garda Hughes, gave evidence of Mr Brien making a statement of complaint to him about an alleged offence committed by Mr Kane on June 28, 2019.
Following on from that, on July 26 Mr Kane made a voluntary cautioned statement in which he said there had been ongoing difficulty with the workmanship of Storefit at the Spar store and the money owed to the company would be quantified when the work was satisfactorily completed.
Mr Kane said he started receiving phone calls and texts from Mr Brien on May 29, 2019 and the accused told him he did not appreciate receiving them in an abusive manner.
On June 27, after he had not answered a call from Mr Brien, he received two calls from private numbers and decided to answer because he thought there might be something wrong at home “up the north” where he usually received calls from a private number.
Mr Kane said he did not call Mr Brien a “c...” which was alleged later and in a call they agreed to meet on July 2 but abusive texts went on until 11.10 that night.
At 5.05pm on June 28 he tried to ring him but he didn't answer and he then texted him and asked him to stop the late night texts and the foul language during phone calls.
Mr Kane's statement also said that on July 1 Mr Brien called to Mr Kane's office and hopped out of his car and shouted abuse at him and barged his way into the office and abused staff and gained entry to the production floor, though he had no right to be there.
Mr Kane said Mr Brien shouted “Did all you guys get paid from this f.....?” and following further comments the accused asked him to leave.
He said he was down at the steel cutting machine and had steel in his hand, which he either threw at a stand or on the ground. He then escorted Mr Brien to the gate and later he told gardai he wanted to lodge a statement of complaint about Mr Brien and the intimidating messages from him.
Mr Kane also said he had been threatened by Mr Brien who referred to the individual from the other county and stated the Storefit director said he would get the accused “kneecapped on the 28th”.
Garda Hughes then gave evidence of a memorandum of interview made by Mr Kane when he voluntarily attended at the garda station on July 30.
In that interview, Mr Kane said Mr Brien had entered a restricted area at the Palfinger workshop and had trespassed on the premises.
He said Mr Brien had introduced himself in a threatening manner and Mr Kane said “you're the person who likes texting and emailing late at night and at the weekends”.
Mr Kane also said he gave gardai emails and texts which he and his family found intimidating, disrespectful and not “in a businesslike manner”.
Returning to the incident on June 28, Mr Kane said Mr Brien shouted “I'll see you in court” and while the accused was lifting steel tubes from the cutting machine Mr Brien shouted that he knew where he and his family lived.
Mr Kane admitted having a piece of steel tube in his hand and said he may have raised it up and hit “some sort of steel stand” but he did not raise it over his head or try to strike Mr Brien with it but instead was holding it like a walking stick.
Mr Kane said he walked away from Mr Brien on a number of occasions and the defendant then threw the tube into a stockpile. Mr Brien left when Mr Kane said he would call the guards.
In the interview Mr Kane also asked why Mr Brien did not leave the premises if he felt threatened.
A voluntary statement made by Mr Brien on August 16 was also read into evidence by Garda Hughes and in it Mr Brien denied saying anything about Mr Kane's house or address or making a threat to him. He also said the texts and emails he sent were “courteous” and during 40 years in business he had never made threats to get money. At the workshop, he used the word “pathetic” a lot to describe Mr Kane during the “very heated” conversation.
Yvonne Warren, who was working in Palfinger on the day of the offence, said in evidence that a man came in and walked very fast and asked to speak to Seamus Kane. When the man was told he had gone into town he moved his car from a Palfinger parking space to a space across the road, a move Ms Warren thought was “strange”.
About an hour later the man returned and was more brisk and asked where Mr Kane was and when he was told he had not come back he “stormed off” and might have accused Ms Warren of lying, or said “right, fine” and she felt he did not believe her because the man also said “he is here”. Ms Warren said she did not know at the time that Mr Kane had come back.
Another Palfinger employee, Ian Fleming, gave evidence of a man coming into the yard looking for Mr Kane and he sent him upstairs.
Later that afternoon when he was working on a truck the same man approached him when he was speaking to Mr Kane and he then heard them shouting and roaring at one another.
Mr Fleming said he heard the man saying he knew where Mr Kane and his family lived and also heard him asking if any of them got paid that week.
The witness also said that Mr Kane had a bar but had it down by his side and he didn't see him hitting anything with it.
The final witness for the prosecution, Adrian Hapak, said he was working in the workshop on June 28 and was asked by the man where Seamus Kane was. Mr Hapak said he then went outside and he heard shouting but he had no interest in what happened after that.
With the case for the State concluded, Mr Toal sought a dismissal on the grounds of reasonable doubt. He said while there was no doubt that there had been a confrontation, it had been verbal and when Mr Kane struck the bar against something he was a good distance back from Mr Brien.
Mr Kane had been working in an industrial premises and he only reacted by hitting the bar when his family was mentioned by the other man. Mr Kane had not risen the bar above his head as Mr Brien had said and it was a case of two men “behaving like schoolboys”.
Judge Staines said she was not acceding to the application because there was a prima facie case to be answered. She said it was clear from the CCTV and accepted by both parties that a very heated exchange had taken place and Mr Kane was almost in Mr Brien's face.
He was not very far away from Mr Brien when he rose the bar in the air and banged it down in a very aggressive way and she thought that was intimidating.
Mr Toal then called Seamus Kane who outlined how Storefit had been contracted to work on the Spar shop on the Arden Road and a deposit of €45,000 was paid and the job was done and the store opened on December 8, 2018.
Mr Brien's workers were still on site after the store opened and in January Storefit was told of different issues and meetings took place with a Spar representative and with Insomnia because the Insomnia coffee station was fitted the wrong way around.
He said Mr Brien knew of the snags six weeks before he came to Tullamore because another man from Storefit had been told about them. Mr Kane said he had no problem if Mr Brien repaired what had not been done and quantified what he was owed.
Mr Kane said a civil case had been taken against himself and Cayenne Holdings, a development company which rents the properties out. He added that an error had been made by Storefit who invoiced Cayenne Holdings instead of Coco Fuels but that had been rectified.
He said he was getting abusive phone calls from Mr Brien late at night in the lead up to June 28, including one where he was going to “cut my head off and shit down my neck”.
When Judge Staines said that specific allegation had not been put to Mr Brien, Mr Kane said he did not know why because he had told Garda Hughes about it.
Mr Kane said that phone call was followed up with the text message in Irish. Mr Kane said because he did not speak Irish he put the message into Google translate and it said “I hope your head sleeps well on your ears”.
Mr Kane further said he told Mr Brien he was going to England with a truck a few days later and gave him the shipping docket, which Garda Hughes also had. He emailed Mr Brien saying he would meet him on July 7.
Turning to what happened in Palfinger on June 28, he said he had been at the steel cutting area and then went down to ask Ian Fleming a question about a truck, where he saw Mr Brien and he told him he would meet him on July 7 because he would be in England before then.
He said Mr Brien continued to harass him and he asked him to leave and then returned to the steel cutting area. He said he got annoyed and was angry and picked up the steel when Mr Brien said “I know where you and your family live”.
He threw the steel into the pile and Mr Brien then started talking about the other man from the other county. Mr Kane also said the steel cutting area was 18 metres from where Mr Brien was standing. He denied holding a bar above Mr Brien's head and though he was close to him he never touched him.
Mr Kane said he had been in Tullamore for close to 40 years and he had never sat in the court in a similar position. He had sat in the court because he had four licensed premises in the town, the Spar shops, Zambrero and Eddie Rocket's and had never come to the attention of the gardai or the courts or even got a parking ticket.
He said it was not his intention to threaten or intimidate Mr Brien but he had received messages in the morning and late at night and had been told by Mr Brien that he was recording conversations he was having with him.
Mr Kane also said he had spoken to Garda Hughes who told him it was his recommendation to the DPP that Mr Brien be prosecuted for threatening and abusive behaviour and trespassing.
In relation to the money owed to Mr Brien, Mr Kane said he had a lot of businesses and probably turned “around close to €30m a year” and had a lot of suppliers to pay. On the first Thursday of each month himself and his partner Luke Carberry did the cheque run.
Judge Staines told him the fact that he paid his bills on time was irrelevant because in this case he had not paid the bill because he did not think the work was done right.
Replying to Sergeant O'Sullivan, Mr Kane denied telling Mr Brien to “f... off out of the premises” and instead he had said “Can you please leave?” and pointed to the door.
With the evidence concluded, Mr Toal told Judge Staines that though there had been an argument, it had not got out of hand to a criminal extent and the matter was a civil one. It was imprudent to pick up the bar but there had not been criminal intent.
Judge Staines said Mr Kane had the tube and banged it down during what was a highly aggressive encounter and though she did not believe Mr Kane was going to assault Mr Brien, and nor did he raise the bar above the other man's head, she was convicting the accused of the charge.
Asked if he wished to make a victim impact statement, Mr Brien said the incident had shaken his confidence for a number of months and he wondered what he was doing in the business. However he had overcome most of the effects since.
Judge Staines adjourned consideration of a penalty to September 15 next for a restorative justice report and Mr Toal said his client would engage in that process.
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