The judge presiding over the case at which Donegal County Concillor, Sean McEniff, was unable to give evidence because of illness told the barrister representing the defendants that his clients "seemed to have a substantial grievance" against Cllr McEniff.
At Friday's special sitting of Ballyshannon District Court, Judge Paul Kelly added: "It seems there are other sinister elements at work."
The case involves former Bundoran Town Councillor Florence McNulty (56) of The Palace, Main Street, Bundoran who is charged with allegedly assaulting Garda Helen Munnelly. Her son Joseph McNulty (34) of 85 Doran Close, Bundoran is charged with alleged threatening, abusive or insulting behaviour as is her husband Thomas McNulty (57) of Main Street, Bundoran. All charges relate to an incident which occurred at Bundoran Town Council offices on February 10, 2014.
In what was the second full day of evidence - the case opened last month - solicitor for Cllr. Sean McEniff, Mr. John Murray, told Judge Kelly that he had been asked to attend the court by Cllr. Mc Eniff's family. He informed the court that Cllr McEniff was in an induced coma and in intensive care in a Spanish hospital.
Mr. Murray produced documentation from the hospital confirming that the councillor was in intensive care.
Barrister for the defence, Mr. Johnnie McCoy, said this was not acceptable and disputed the matter with Judge Kelly.
Mr McCoy said: "Mr. Murray has made assertions that Mr. Mc.Eniff is in an induced coma. There is no evidence of this. The report just says that he is intensive care. Mr. McEniff is an essential witness in this case."
Judge Kelly replied: "What is the point in all this. Mr. McEniff is not being charged with anything. No person has to be a witness unless their evidence is material to the proceedings.
"Your clients seem to have a substantial grievance against Sean McEniff. It seems there are other sinister elements at work.
"I am confident that Mr. McEniff is not in a good state of health. You are criticising medical reports which are from a hospital in Spain. Are you suggesting that these medical personnel are covering up, or that Mr. Murray here today is part of a conspiracy? This court is not an enquiry into Mr. McEniff’s health. The case will proceed," Judge Kelly added.
Diarmuid McNulty, who is a son of Florence McNulty, gave evidence that on the morning of February 10, 2014 he went to the Town Council Office in Bundoran after being told his mother had been assaulted by Sean McEniff.
He told the court: “My mum was lying on the floor and shaking, and this got me upset to see my mother like that. She was shaking and white-faced.”
He said his father told him to calm down and to take his mother outside, and he did so. He said he was angry when he saw gardaí accompany Cllr McEniff out of the town council offices with other councillors.
“I thought they were arresting him, but he was being escorted.”
He added that Garda O’Brien placed himself between Cllr. McEniff and his father Thomas and brother Joseph McNulty.
He recalled the arrest of his brother Joseph, saying Garda Ciaran O’Brien had pulled Joseph’s hand from his pocket. He said Joseph had put it back in his pocket, but was then grabbed by the throat by Garda O’Brien.
“He (Joseph) pushed Garda O’Brien’s left hand away from his throat, and then Joseph was pepper sprayed without warning. I got very angry and started shouting at the gardaí. I expected to be arrested myself.”
At this point, Ms. Patricia McCafferty, who was in the gallery, alleged that Mr. Conor McEniff had been taking photographs in the court with his phone. Superintendent Colm Nevin examined the phone and said that there were no pictures on the phone from the court.
Joseph McNulty also gave evidence of going to the town council offices after getting a phone call from his mother.
“My mother was going through treatment for cancer and had a broken leg. She was not in good health,” he said.
Joseph McNulty said he knew when he arrived at the town council offices that his mother was hurt.
He said: “I knew she was hurt. I could see the pain etched in her face. Garda Helen Munnelly was helping her and giving her a glass of water.”
He added Garda Hubert Gilvarry told him they would be able to speak to Cllr McEniff after the meeting and he informed his father of this. Joseph McNulty said he went out to the car park to wait near Cllr McEniff’s car. He added that Garda Munnelly and Garda O’Brien then came out along with Cllr McEniff, Cllr. Denise Connolly and Cllr. Michael McMahon.
He approached the group, but had to move backwards because they kept coming towards them.
He described being arrested by Garda O’Brien who, he alleged, grabbed his throat.
Joseph McNulty said: “He was goading me all the time saying, 'You think you are a hard man. You think you are a tough man'."
He said he tried to move the garda’s hand from his throat.
“He instantly pepper-sprayed me with his right hand into my eyes at point-blank range with no warning given,” he said. “It blinded me. It was very painful.”
He was handcuffed on the ground and lifted by the armpits. He added that at no point did he hear a woman cry out in pain.
His father, Thomas, was also arrested and the pair were taken to Ballyshannon Garda Station.
During cross examination by Superintendent Colm Nevin, he was asked if he was aware that Ms. Patricia McCafferty had made a complaint to the Garda Ombudsman (GSOC).
He said: “An officer from GSOC came out and spoke to myself and my father. We asked could we make our statements after the guards had made their statements. He said there was no time limit. This turned out not to be the case.”
He said their solicitor wrote to GSOC on numerous occasions and the answer came back saying the investigation was discontinued because the defendants had not made statements.
Thomas McNulty was next to give evidence.
He also described going to the town council offices and said his son, Diarmuid was very upset. Florence, he said, was concerned about a motion she intended to bring to the meeting. He said Garda Gilvarry took notes about the motion and went into the meeting. Garda Munnelly told him that all matters would be investigated.
After the meeting Thomas McNulty said he approached Sean McEniff in the car park and asked: “What the hell are you at? Have you sawdust in your head?
“Sean replied to me and said, 'Thomas I am sorry, I am sorry. It shouldn’t have happened.’”
He described Joseph’s arrest when gardaí were on the ground, saying Florence was calling to Garda O’Brien to get off her son. He said Diarmuid was there, too, saying ‘You are not going to pepper-spray my mother'."
Regarding the alleged assault of Garda Munnelly, Thomas McNulty said: “At no stage was Florence close enough to Garda Munnelly to assault her and at no stage did I hear Garda Munnelly cry out.”
He added that he had been held overnight in Ballyshannon and brought to Dungloe Court the following morning, where he was remanded back to Ballyshannon.
Thomas McNulty talked about the stress caused to the family by the case being struck out and re-entered, and the 20-odd adjournments that followed.
Judge Kelly said: “The only matters that concern me are the incident. There are too many matters being dragged into this court that have no bearing.”
Florence McNulty told the court about the state of her health on the day in question. She said that as well as having a broken leg, she had lymphedema as a result of breast cancer surgery. This caused her to have swollen, painful arms that were hard to use, meaning she was unable to use her crutches and had very little power in her arms.
She said she had gone to the meeting which was about storm damage, but wanted to bring up her motion relating to sewerage treatment as it was of great concern to her. She added that she was not aware the the meeting was being held "in committee".
She described the alleged assault where Sean McEniff closed the door on her as she tried to enter the meeting.
She said the other councillors seemed to be jeering and laughing and they said there was no assault. Mrs McNulty described feeling very unwell. Her head was spinning.
She said that in trying to keep Patricia McCafferty from getting in, the Town Clerk, Joe McNulty, was blocking the way out.
“I just sat down on the floor and said please help me. I thought I was going to pass out.”
Mrs McNulty said Garda Munnelly arrived and was very helpful.
Mrs McNulty had called her son Joseph.
“I knew he would come down and help me. He is a good, calm person.”
When my other son, Diarmuid arrived he was shouting into the office and making a scene.
“He has become very protective of me since I was sick,” she said. “So Thomas went over to him and told him to get me out.”
Mrs McNulty left the building with Diarmuid McNulty and Patricia McCafferty. They went towards Sean McEniff’s car. She said Joseph had both hands in his pockets and one was pulled out by Garda O’Brien. She said she was very worried when her son was pepper-sprayed.
She said Garda Gilvarry came out and ran towards Diarmuid. She herself was behind Cllr McEniff’s car. Diarmuid was beside it and Thomas had his hand up trying to block the pepper-spray from Joseph, she said.
Cllr McEniff got into his car. Mrs McNulty asked him why he assaulted her.
“It seemed to me he was smiling at me,” she said.
Her sister, Christina Sheridan, then arrived on the scene and also began shouting at Cllr McEniff.
Mrs McNulty told the court she became aware that the boot of Cllr McEniff’s car had opened.
She said: “I thought I might get something to wipe Joseph’s face with, I was panicking and throwing stuff out of the boot. Diarmuid was by my side. I heard someone cry out ‘My arm, my arm.’”
She went to where the gardaí were on the ground arresting Joseph McNulty.
“I tried to push Garda O’Brien away, but my arm was too sore,” she said.
While this was going on, Cllr McEniff reversed his car out. At this stage Mrs McNulty was behind her husband, Thomas, she said.
“It was Garda O’Brien’s knee that was blocking the handcuffs,” she said. “I bent down to open the cuffs to help get them on Joseph so I could wipe his face.”
Mrs. McNulty said: “I had no reason to hit Garda Munnelly. I wasn’t even really aware that she was there. It was Garda O’Brien that I had contact with. I wasn’t able to reach her. I had no reason to. She had been very kind to me. The only garda that I had any interaction with was Garda O’Brien.”
Regarding an allegation that Joseph McNulty kicked out while being arrested, Mrs McNulty said: “My son was on the ground saying, 'I can’t see anything.' He wanted to wipe his eyes. Joseph was not violent. He put his hands up to wipe his eyes and then put his hands back behind his back.”
After all evidence was heard, Mr McCoy said he needed to call Cllr McEniff as a defence witness.
Mr. McCoy said: “Mr. McEniff is an integral part of the defence. There is a report in one of today’s papers that he has been released from hospital. When will he be able to give evidence?”
Cllr McEniff’s son, Conor, was in court and confirmed that his father was in an induced coma. He said even if he came out of in the coming weeks, it would be a further two or three weeks before he could travel home.
He also said that his father could never give evidence because his cardiologist had told him to avoid all stress.
Judge Kelly adjourned the matter to December 9th for mention. He said he would need an update on Cllr McEniff’s health, adding the court will need "something tight and concrete".