THE judge in the trial of a Limerick solicitor accused of deceiving a client of €7,500 has directed the jury to enter a not guilty verdict after a legal issue arose where a “grave prejudiced has been suffered” by the defendant because of the absence of crucial evidence in the case. Denis McMahon, (58) a former partner with McMahon O’Brien Downes, stood accused of dishonestly obtaining monies from a client, Margaret Duggan, after her personal injuries claim with a former employer was settled for €65,000 and not €57,500 as she said she was told.
Judge Pauline Codd said that she was satisfied with the application made by the defence after the court heard legal arguments that a fundamental piece of evidence was not presented in the prosecution case.
Margaret Duggan, repeatedly told the court, that she only ever dealt with Denis McMahon during the process of negotiations in her case and that she never spoke to the late Seamus McKenna, SC, who had been nominated to act on her behalf.
It was conceded by the prosecution that Mr McKenna, a notably fearless negotiator, “would have been extremely careful to avoid any miscommunication” and to always be sure to take instruction from the client he represented.” This, Judge Pauline Codd, said would have made it both “unlikely and improbable” that Mr McKenna was not involved in the negotiations.
Judge Codd said that it was a “crucial element to the case” that Mr McKenna, having been identified by Mr McMahon as the person he instructed to act for Ms Duggan in the negotiations, when he was first interviewed and questioned by An Garda Siochana in April 2008.
No explanation was given as to why the late Mr McKenna was not interviewed after this identification made by the solicitor.
Making his application to the court, Brendan Grehan, SC, said that the absence of the evidence of Mr McKenna, who passed away over two years after Mr McMahon was interviewed, was fundamental to the defence
Judge Codd, quoting a Supreme Court ruling, noted that it was the obligation of the prosecution to procure evidence from all witnesses in a case. In this instance, she said that, “to prevent any possible injustice”, the court was constitutionally obliged to “prohibit the trial from proceeding any further”.
Stating that the contentious point of evidence that Ms Duggan says she had no dealings with Mr McKenna and that she only ever dealt with Mr McMahon, despite the State witnesses verifying that the barrister was involved, was a point that could not be resolved given the “unavailability of a Statement from Mr McKenna”
Judge Codd, before directing the jury to return a not guilty verdict, added that “The credibility of Ms Duggan is at issue and a grave prejudiced has been suffered by the accused”.
In addressing the jury, Judge Codd said that “after considerable legal argument, I’m directing that you enter a ‘not guilty verdict by direction of the trial judge’ on the issue paper.
Above: Solicitor Denis McMahon, who was found not guilty of dishonestly obtaining money from a client and Margaret Duggan pictured with her husband Donal
