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08 Aug 2022

20-year-old accused of murdering Waterford fisherman 'acted in self defence', his lawyers tell jury

20-year-old accused of murdering Waterford fisherman 'acted in self defence', his lawyers tell jury

A 20-year-old accused of murdering a drunk fisherman who entered his home as a trespasser "had no intention to do anything other than protect his own home" and had acted in self defence, his lawyers have told a Central Criminal Court jury.

However, prosecution counsel said that the case of Dean Kerrie "bears out the true folly of taking the law into your own hands".

In his closing speech counsel for the DPP, Michael Delaney SC, said the accused could have let Jack Power (25) walk out of his house that night but decided to take the law into his hands "at a level much greater and with much deadlier consequences" than Mr Power intended when he entered the Kerrie home.

Mr Kerrie (20), with an address at St Brigid's Square, Portarlington in Co Laois has pleaded not guilty to murdering Mr Power at Shanakiel, Dunmore East, Co Waterford on July 26, 2018.

Addressing the jury on Monday in his closing speech, Mr Delaney said there was "fairly significant" conflict between the evidence from the prosecution witnesses as to the circumstances of how Mr Power met his death and the account given by the accused in his evidence last Friday. "It is your function to determine where the truth lies," he said. 

Mr Kerrie took to the stand at his own trial last Friday, telling the jury that the deceased had kicked in the front door of his home, attacked him and threatened to kill his mother.

Today, Mr Delaney submitted in his closing address that because Mr Power had entered Mr Kerrie's house as a trespasser with intent to commit assault, then regard must be hard to self defence or the justifiable use of force and how these principles interacted with the basic ingredients of murder.

Describing the basic principle of self defence, counsel said that if a person uses no more than reasonable force in defending themselves or their property then they are not acting unlawfully and commit no offence. "In a homicide case, if no more than reasonable force is used and there is no unlawful killing and the basic ingredient of murder has not been committed, then the accused is entitled to a full acquittal," he said. 

However, he pointed out if the force used is excessive having regard to the circumstances, then the accused is acting unlawfully and commits an offence. It depends on the state of mind of the accused at the time of the killing as to whether it is murder or manslaughter, he added. 

"If a person uses excessive force and knows they are using excessive force and as a result the person is killed then they are guilty of murder. On the other hand, if on your view the person uses excessive force but honestly believes the force used is no more than reasonable, the law does not regard them as acting maliciously and says the verdict is one of manslaughter and not murder," he explained. 

When considering self defence, Mr Delaney said there were three possible verdicts open to the jury namely; not guilty, not guilty of murder but guilty of manslaughter or guilty of murder. "It is important that you establish in your own minds what force was used by the accused and were the circumstances by which that force was used justified," he told the jury. 

Outlining Mr Kerrie's "version of events", Mr Delaney said the 20-year-old gave evidence that he picked up a knife that night and brandished it at Mr Power when he was being assaulted by him in the bedroom "but that he did not stab him with the knife, that Mr Power had lost his footing and fell into the knife". 

"As implausible and all as that may seem, if you are satisfied beyond a reasonable doubt that this was not an accidental stabbing but a deliberate act and he deliberately stuck a knife into Mr Power's chest, then that is a different scenario, that's a serious level of force and a serious act of violence. In those circumstances you would have to be satisfied that there was a serious threat at the time to Mr Kerrie or someone else in the house to justify that level of force," he continued. 

If it was a deliberate stabbing, counsel said, there was no threat and Mr Power had left the house as described by his friend Christopher Lee in his evidence. "There is no justification for that level of force in circumstances where there is no threat; it's simply an act of retaliation," he pointed out.

He drew the jury's attention to the law which outlined that one is not entitled to kill someone because they trespass on another's property. 

Regarding the "version of events" put forward by Mr Kerrie, counsel said there were a number of features in his evidence that were "inherently implausible". These, he said, included that the knife was "conveniently lying" at the foot of a bed where the assault had taken place and within reach of the accused rather than in the kitchen, where one would expect it to be.

It was also implausible, Mr Delaney said, that Mr Power had lost his footing as he was trying to kick the knife out of Mr Kerrie's hand and that he ended up falling onto the weapon.

Furthermore, the lawyer said the account given by the accused concerning what he did with the knife after the incident was also implausible. "Mr Kerrie said he went into the kitchen and put it on the draining board, it was clearly concealed by view. He would have you believe that completely by mistake he picked up a different knife and placed it in the hall, not according to him where the stabbing occurred but just so it would be there when the gardai came into the house," he said. 

If this was the case, counsel asked, why "take it from the kitchen at all and tell gardai when they arrive that is where it is to be found".

In the opening address, Mr Delaney said the jury would hear that a black and white handled knife was seized from the hall and swabbed for blood but "curiously no blood was found on the blade". The court heard gardai found a similar knife partially concealed on the draining board in the kitchen of the house, which did appear to have blood and it was found to contain Mr Power's DNA.

Other areas of Mr Kerrie's account "stretched credibility", he argued, including the alleged attack by Mr Power on Mr Kerrie, who said he was choked so firmly by the deceased that he passed out and then woke up in the corner of the middle bedroom. Mr Delaney said the accused had made no complaint of neck pain and there was no evidence of any marks around his neck. "What he did sustain were some minor cuts or scratches, consistent with a minor assault. Nothing more than that," he added.

Counsel told the jurors that Mr Kerrie claimed his mother, Ann Fitzgerald, did not know Mr Power had been stabbed until her son told her. "It is not credible that his mother would not have been aware that Mr Power was stabbed. He may have lied to cover up the fact that she did nothing to assist a man who was dying outside," he submitted. 

Also, counsel said the accused's account did not tally with that of his friend Dylan Jones, who he had shared a bed with that night. 

Mr Kerrie said that Mr Power had kicked in his door whereas Jones gave a very different description as to how the deceased entered the property. "He [Jones] saw the handle going down on the door and said Mr Power simply walked in," said counsel. 

Also, counsel reminded the jury that Mr Kerrie said that he was defending himself from attack by Mr Power when he [Mr Kerrie] produced the knife whereas Jones said that the deceased was pulling Ms Fitzgerald by the hair. "The two men are describing two very different things happening at the time of the stabbing," said Mr Delaney.

Furthermore, he said, Ms Fitzgerald had shown no signs of injury and made no complaint of assault or injury to gardai. 

He urged the jury to reject the version of events offered by Mr Kerrie and Jones.

Mr Delaney said that the account given by the deceased's best friend Christopher Lee was consistent with the other evidence in the case. "Looking through the window of the middle bedroom, Mr Lee saw the scuffle take place between Mr Power and Mr Kerrie. When the scuffle came to an end, Mr Lee saw Mr Power coming out into the hall, about to leave the house and saw Mr Kerrie come from behind Jack Power and shout something at the end by where Mr Power turned around and was stabbed," he said. 

The barrister noted that the limited amount of blood found at the scene was concentrated in the area around the hall adjacent to the kitchen, that the "decoy knife" was placed by Mr Kerrie on the floor of the hall adjacent to where those spots of blood were identified by gardai and that Mr Power had no defence injuries on him. "Mr Power did not see this knife coming at him, it is consistent with him having his back to Mr Kerrie and as soon as he turns around he is stabbed in the chest. He had no opportunity to put his hands up and defend himself," he said.

Mr Delaney suggested that "the most telling piece of evidence" were the words of the accused man in the background that night when his mother was being put through to gardai on the phone. 

The accused accepted on the stand last Friday that he could be heard shouting "I'll take your life, I hope you're dead. I'll take your life" in the background on the 999 call. 

Mr Delaney submitted that these were not the words of someone who was in fear of their life as Mr Kerrie had told gardai on the phone that night.

The jury has already listened to a 999 recording of then-teenager Mr Kerrie telling a dispatcher "I'm actually so in fear of my life right now" after he said he stabbed Jack Power "by accident" and that the man had come "in the front door at him" and tried to hit him.

"I did it but I didn't mean to though," Dean Kerrie told the emergency services. "My life is going to be gone over him coming in here," he also said. 

Mr Delaney stressed today that these were words of "defiance and malice", which revealed the accused's true state of mind when he stabbed Mr Power. 

The lawyer concluded by saying that the facts of this case bear out "the true folly" of taking the law into your own hands. "Whether he was right or wrong, Jack Power was convinced Mr Kerrie had broken the wing mirror of his car. He paid for that mistake with his life. Mr Kerrie, we say on the evidence, could have just let Mr Power walk out of the house that night but he too decided to take the law into his hands. He did it at a level much greater and with much deadlier consequences than Mr Power intended when he went into the house," he highlighted. 

In summary, Mr Delaney said the jury could be satisfied that the prosecution had proved the case of murder against Mr Kerrie beyond a reasonable doubt. 

Defence counsel Ciaran O'Loughlin SC told the jury that the central issue they have to consider is what happened inside the house that night from the time Mr Power broke the window of Mr Kerrie's house up until he suffered a stab wound. 

He indicated that there were serious difficulties in the evidence but also serious similarities. 

He reminded the jury that his client had repeatedly said that he had stabbed Mr Power but didn't mean to. "If he had intended to stab him, he might have stabbed him two or three times," he said. 

Mr O'Loughlin argued that there was no time for Mr Kerrie and Jones to "concoct" a story as the accused was on the phone from the time Mr Power was stabbed until gardai arrived at his home. 

He called the allegation of the accused's hiding the knife nonsense and said the evidence established that Mr Kerrie was in fear of his life. "Why wouldn't he be, he had just been attacked by a huge man. To suggest he is on the phone sobbing and crying to gardai and interfering with evidence is nonsense," he added. 

If Mr Kerrie was threatening people outside the house then it was to keep them away, he said. 

Counsel said whilst this was an enormous tragic event, it was an act of self defence. "He had no intention to do anything other than protect his own home," he said.

The murder trial has heard that Mr Power sustained a single stab wound to the front of the chest which penetrated his heart.

Ms Justice Eileen Creedon will begin charging the jury of seven men and four women tomorrow before they commence their deliberations. 

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