Judge rules that alleged assault victim’s evidence contradicts CCTV footage

The case against a man charged with assaulting a retail worker and causing him harm while Covid-19 restrictions were in place has been dismissed.

It follows a submission made by defence solicitor Rory O’Brien that the evidence given by the alleged victim was inconsistent with CCTV footage. Mr O’Brien submitted that this therefore damaged the credibility of the witness.

At Wednesday’s sitting of Donegal District Court, Judge Patricia Cronin dismissed the charge, though she acknowledged that the defendant’s behaviour ‘left a lot to be desired.’

John Milsop, 65, of Cashelcarn, Kilcar was accused of assaulting John Drury at SuperValu, Killybegs on July 22, 2021. He was further charged with causing criminal damage by allegedly breaking reading glasses belonging to John Drury.

Mr Milsop denied both charges.

Mr Drury who was working as a supervisor at SuperValu gave evidence that on the date in question, he had been unloading water bottles with another person at the back of the shop.

He claimed that he observed Mr Milsop who was not wearing a face covering as per regulations that were in place at the time.

“We have done everything we could to support the people of Killybegs, Carrick, Kilcar, Glencolmcille, up as far as Portnoo and Narin during Covid-19,” he said. 

“We put people at the doors, approached people politely if they were not wearing masks and I would ask them if they had an exemption to the regulation. If they had an exemption card or had asthma or a heart condition, we would of course allow them to proceed.”
Mr Drury claimed that it was in this spirit that he approached the defendant. He said he offered to provide Mr Milsop with a face mask if he didn’t have one.

The witness said he was told to f**k off.

“I followed him down the aisle and asked him if he had an exemption card,” said Mr Drury.

“I was met with ‘what part of f**k off do you not understand?’”

Mr Drury said that as he was trying to explain politely to the defendant that he needed to wear a mask, he was assaulted and his glasses were broken.

“He was basically pushing himself into me,” said Mr Drury.

“I had my hands above my head. I said, ‘there is no need for this.’

“He went for my shirt, took my glasses off me and smashed them on the ground with his foot.

“He came into my chest and tried to headbutt me. I was able to turn and hold him at bay.

“At that stage there was a tussle and he picked up a bottle. The bottle was taken off him and he put his finger into a hooked tip and tried to put it into my eye.”

Mr Drury said he had attended the doctor for treatment on his injured eye.

Mr O’Brien put it to the witness that when he approached Mr Milsop in the shop, he had in fact said, ‘Hi boy, where is your mask?’

The solicitor also asked if Mr Drury had been wearing a uniform or anything that would have identified him as shop staff.

The witness denied saying ‘Hi boy, where is your mask?’ but acknowledged that he had not been wearing a uniform.

“I had taken my top off when I was unloading bottles.”

Mr O’Brien also put it to Mr Drury that he had pushed Mr Milsop with his chest, and had shoved him into a jam display.

He added that any action Mr Milsop had taken had been in self defence against a stranger who had approached him in an aggressive manner in the shop.

Mr O’Brien explained that his client had attended a diabetic eye clinic in Donegal Town and had drops in his eyes that were causing discomfort. That was why he was not wearing a mask. On the way home from the clinic, he and his wife, who was wearing a face covering, had stopped in SuperValu for shopping.

Mr Drury denied touching Mr Milsop, or pushing him with his chest.

Garda Odhran McBride gave evidence of attending SuperValu after receiving a complaint of an assault. He said that he viewed CCTV footage and was able to identify the witness who was known to him as a member of the community of Kilcar. 

Garda McBride said he called to Mr Milsop who denied the allegation. The defendant made a counter allegation which led to Mr Drury being asked to make a cautioned statement. 

In response to questioning from Mr O’Brien, the garda said that the CCTV he viewed had already been downloaded when he got to the shop.

Mr O’Brien suggested that given the number of cameras in the shop and the sophistication of the system, there should have been further, clearer CCTV material that would have given a better view.
However, he said that despite the awkward angle of the CCTV, it was clear that Mr Drury had pushed his chest into Mr Milsop and had shoved him.

Garda McBride acknowledged that this was the case.

Judge Cronin examined the footage and agreed that the events captured on the CCTV footage were not in keeping with Mr Drury’s evidence.

She ruled: Taking the prosecution case at its head, it turns upon the evidence of the alleged injured party, John Drury. The footage contradicts his evidence. 

“He says he did not push or touch Mr Milsop. This was agreed by the prosecution in evidence.

“The court’s view is that Mr Milsop’s behaviour leaves a lot to be desired by his own admission. 

“I accept that it was a difficult time for retail workers. 

“But the prosecution does not stand; therefore I dismiss the case.”