'There were bodies everywhere,' Witness describes brawl that led to assault in Upperchurch

The jury in the case of a Drombane man accused of assault causing serious harm in Upperchurch, in 2021, has delivered a verdict of guilty on both counts at Nenagh Circuit Court.

Patrick Burke (21) of Roskeen, Drombane, was charged with violent disorder, contrary to Section 15 of the Criminal Justice (Public Order) Act 1994 and assault causing serious harm to Ross Whelan, Section 4 of the Non-Fatal Acts Against the Person Act 1997, on June 27, 2021, in Upperchurch. 

The trial was five days long, and the jury of five men and seven women deliberated for two hours and three minutes before delivering their unanimous verdict. 

Sentencing will take place on Friday, June 14. 

‘BODIES EVERYWHERE’

During the trial witness, Jack Ryan, who was socialising with friends on the night of the incident, gave evidence that he witnessed the assault and provided assistance to Ross Whelan. 

Mr Ryan told the court he had just recently completed his Leaving Certificate and gone to Kinnane’s Bar and Restaurant with friends.

He said he saw Joseph O’Donoghue during the night, “drunk off and messing,” going around hugging people, including the injured party.

“It was harmless, foolish behaviour,” said Mr Ryan. 

At closing time, Mr Ryan said he went to the church grounds with a girl and got a call from a friend that there was a fight in the village, so Mr Ryan returned to the village.

“There were bodies everywhere and lads fighting left, right and centre,” said Mr Ryan. 

He told the court he saw Mr O’Donoghue in an old Upperchurch jersey on the side of the road.

The white car, which belonged to the group from Cashel, including Ross Whelan, was on the right-hand side of the road.

Mr Ryan ran down the road and saw Mr Whelan run past him with some “Upperchurch lads” running after him. 

Mr Whelan turned back around and moved backwards toward the village, facing Mr Ryan. 

Mr Ryan told the court he had a clear view of the injured party and the defendant, Patrick Burke, “get to Ross first”.

The court heard Mr Burke had the “stronger” position, but both men “exchanged punches”.

“I could see him swinging, but I couldn’t see if any were landing,” said Mr Ryan.

Then, Mr Ryan said a girl ran out in front of them, obstructing his view. 

When she passed, Mr Whelan was on the ground. 

Mr Ryan told the court that while he did not see Mr Whelan fall, he had heard a “very loud thud”.

He said he saw Mr Burke pick up Mr Whelan by the collar, and “give him a box”.

Mr Whelan wasn’t reacting and showed “no sign of resistance”.

Mr Ryan said Mr Burke held Mr Whelan in a sitting position and punched him in the left eye before letting him go, hitting his head off the ground. 

Mr Ryan told the court that he roared at the defendant to “leave him off” before going to help Mr Whelan. 

Mr Burke “jogged off toward Oliver’s Pub”.

Mr Whelan was unconscious, and Mr Ryan described how his eyes had rolled back in his head, and the whites were visible. 

He described holding down the victim’s tongue, ensuring he did not swallow it and keeping his airways open, while supporting the back of his head.

Mr Ryan told the court, Mr Whelan was unconscious for “the guts of five minutes”.

When he came around, he was hyperventilating and had a “big lump” on the back of his head.

Publican at Kinnane’s Bar and Restaurant Fergal Butler arrived, and Mr Ryan said they tried to get Mr Whelan to his feet, but his legs “buckled”.

He, Mr Butler and a man from Thurles carried Ross Whelan to the car, where his friends were instructed to take him to the hospital.

The assault happened outside of the view of the CCTV footage. 

‘Pure Carnage’

Acting for the defence, Aidan Doyle BL, asked the witness if he had been drinking on the night of the incident. 

Mr Ryan said he had one pint and seven whisky and 7ups, but that he had eaten earlier in the night. 

Mr Doyle put it to the witness that in his statement, he described the events as “pure carnage”.

That combined with his obstructed view just before Ross Whelan’s fall and the amount he had to drink may have impaired his ability to see the incident clearly. 

Mr Ryan replied that while he did not know the parties personally, he knew them to see and he could see others like Mr O’Donoghue, who Mr Butler “had a hold on”.

Mr Doyle asked if he had seen Mr Whelan grab Patrick Burke in a headlock and his brother Joseph Burke intervene. 

The witness said he had not seen that.

Mr Doyle put it to him that in the approximately 30 people who provided statements that night, only he saw the version of the incident he described. Mr Ryan said he was “comfortable” with his evidence. 

‘A TUSSLE’

Patrick Burke gave evidence that he had “a tussle” with Ross Whelan.

He told the court that he had just finished school and had played on the losing team the day before.

On the night of the incident, he met up with his teammates in Upperchurch, starting in Pa’s and moving to Kinnane’s.

After closing, a fight broke out on the street that involved Mr Whelan and Joseph O’Donoghue.

Mr Burke said he didn’t know Mr Whelan but Mr O’Donoghue was a teammate. After the “brawl”, the group from Cashel left.

Mr Burke remained on the street and saw the white car with the Cashel group swerve toward Mr O’Donoghue, before coming to a stop. 

“The whole car emptied when the car got a slap on the wing mirror,” said Mr Burke. 

The Cashel group got out of the car and clashed with a group from Upperchurch. 

A car door opened, and Mr Burke said he was pulled in. 

Fergal Butler pulled him out, and he saw his friends, including AJ Shanahan, on the ground at the bottom of the hill. 

Believing them to be in trouble, Mr Burke said he went to their aid. 

At the bottom of the hill, Mr Burke said he was “met” with Mr Whelan, who put him in a headlock.

The court was told punches were thrown by men before Joseph Burke intervened, throwing a punch that connected “more” with his brother but separated the two men. 

Mr Burke described both he and Mr Whelan falling to the ground and his brother pulling him up and telling him it was time to go home. 

Mr Burke told the court that he and his brother, then walked through the village to where their lift was waiting. 

‘VICIOUS’

On cross-examination and acting for the state, Eileen O’Leary BL argued that not only is Mr Burke’s version of events untrue but that his behaviour earlier in the night showed he was looking for a fight.

Using the CCTV footage from Kinnane’s bar, Ms O’Leary points to a section of a previous brawl where Mr Burke appears to get a man in a yellow hoodie in a headlock before wrestling him to the ground.

While on the ground, Ms O’Leary said Mr Burke delivered a series of punches in “a downward fashion”, before kicking and stamping on the man. 

She put it to the defendant that this behaviour differed from all others fighting. 

“I have to put it to you that what’s on that CCTV is vicious,” said Ms O’Leary. Mr Burke conceded that “it wasn’t friendly” but denied kicking and stamping on the man he fought. 

Ms O’Leary continued: 

“You were gunning for a fight that night.

“You were hopping around like someone in a boxing match,” said Ms O’Leary.  

She continues to point out, while playing the CCTV footage, that when the car stops, Mr Burke is first to reach it and first to throw a punch.

Mr Burke denied being aggressive, describing his behaviour as “jovial”.

“Look at you immediately over and swing a punch before anyone gets out of the car,” said Ms O’Leary. 

Ms O’Leary asked the defendant if the version he outlined was what he described as a “tussle” and if so, how was Mr Whelan injured. 

The defendant said he didn’t know the defendant was injured because he left after they fought. 

He also said that if there was a longer piece of CCTV, the court would be able to see him and his brother walking through the village. 

The court guard, when asked, said that no more CCTV was available to the court. 

Ms O’Leary put it to the witness that two other people, Paudie Kinane and Jack Ryan, gave evidence that he ran from the scene and asked if he saw the white car still there and Mr Whelan injured.

The defendant said he didn’t because they made a “beeline” for the carpark, up the hill, past the two pubs.  

He denied picking Mr Whelan up and striking him.

NO MEMORY

Ross Whelan gave evidence that he has no memory of the events of that night.

He told the court his last memory was the previous day, the match and a birthday party he attended in Fethard that evening.

He knows he attended a match on the day of the incident, but has no memory. 

The court heard Mr Whelan’s memory did not return for a month after the assault.

He said he has “flashes” of his time in hospital, where he spent ten days in a coma and a further two weeks in ICU. 

Mr Whelan said he began to regain memory around the time the Leaving Certificate results came out but he does not remember sitting his exams. 

In court, Mr Whelan was able to identify himself on the CCTV, as well as other men who had been involved on the night. 

He said he had known Patrick Burke to see but not personally.

In the section of the footage where he is purported to have fought with Joseph O’Donoghue, Mr Whelan said it wasn’t him but Brian O’Dwyer, who was dressed similarly.

He did, however, agree that based on the CCTV footage, he was fighting on the evening. 

On cross-examination, Mr Doyle puts it to Mr Whelan that he can be seen getting out of the car and appears as though he will hit someone.

Mr Doyle said the car stopped “violently” and had it kept going, they would not be in court now.

“From the CCTV, it seems tensions were high after the row earlier and someone slapping the car,” said Mr Whelan. 

AFFRAY

Sgt Andrew Lyons, who was at the time attached to Thurles Garda Station,  told the court that the defendant was arrested on July 16, 2021. 

At that time he admitted to gardaí having a “tussle” with Ross Whelan on the night of the incident.

He told the court that Mr Burke had no previous convictions.

Sgt Lyons said that seven others were also charged, and all have since pleaded guilty to affray.

After their arrests, clothing and footwear worn on the night were seized.

This was used in court to identify various persons on the CCTV, which was not clear enough to see faces. 

Garda Detective Mark Cullinane held up each item, identifying its owner, to assist the jury in following the CCTV.

GUILTY

After the jury delivered the verdict of guilty on both counts, Ms O’Leary applied to the court to remand the defendant in custody pending sentencing. 

She told the court that an assault causing serious harm is a very serious offence, and a conviction changes the defendant’s status. 

Mr Doyle made an application for bail on behalf of his client. 

He told the court that his client needed to attend a medical appointment before sentencing. 

Judge Catherine Staines said she acknowledged that the offence was a serious one.

However, she said the defendant is a young man with a medical condition who will want to spend some time with his family. 

The judge granted bail to allow him to do that.