D.P.P.-v- Raymond Casey & Anthony Casey, [2004] IE CCA 49 (2004)

Docket Number:5/02 & 4/02
Judge:McGuinness J.
 
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COURT OF CRIMINAL APPEAL

No. 4/02 and 5/02

McGuinness J.

Herbert J.

Peart J.

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC

PROSECUTIONS)

.v.

RAYMOND CASEY AND ANTHONY CASEY

Judgment of the Court delivered on the 14th day of December 2004 by McGuinness J.

This is an application for leave to appeal against conviction by both applicants. The applicants bear the same surname but are not related. Raymond Casey and Anthony Casey were charged with the murder of Noel Pyper at Newenham Street, Limerick, on 12th August 1997. Both applicants pleaded not guilty. Following a trial lasting twenty days in the Central Criminal Court between 28th November 2001 and 8th January 2002 before Carney J. and a jury, both applicants were found guilty of murder by the unanimous verdict of the jury in each case and were sentenced to life imprisonment. Leave to appeal was refused by the court. Both applicants seek leave to appeal this refusal. This court has treated the application for leave to appeal as the appeal.

In his application for leave to appeal, which was dated the 9th January 2002, the first named applicant set out the following grounds of appeal:"1. That the learned trial judge erred in law in not so ordering that Dean Casey, a person whose statement appeared in the Book of Evidence, be proffered in evidence, such application having been made to the learned trial judge on behalf of the appellant.2. That the learned trial judge erred in law in refusing an application to have the jury discharged and further erred in law in refusing to properly hear such application and further insofar as the application was heard the learned trial judge erred in hearing such application in the presence of the jury.

  1. That the learned trial judge erred in law in admitting into evidence of (sic) fingerprints of the appellant taken by members of An Garda Siochana in circumstances where no proper or lawful authority existed for the taking of such prints.

  2. That the learned trial judge erred in law in admitting into evidence Garda statements relating to palm prints in blood in circumstances where no scientific or other evidence existed to establish that the substance in question was blood.

  3. The appellant was kept in segregation, solitary confinement and denied access to his papers throughout his trial and as such was not in a position to properly brief his lawyers and so was denied his constitutional right to a fair trial.

  4. The appellant's lawyers were court appointed by the learned trial judge four days prior to the commencement of the trial thus denying the appellant's time to properly brief his lawyers thus denying the appellant's constitutional right to a fair trial.

  5. That in all the circumstances the conviction of the appellant is unsafe."

    During the period of over two years which elapsed between the filing of the notice of appeal and the hearing before this court on the 28th July 2004 a number of adjournments were granted, some at least arising from applications by the first named applicant concerning amendments to his grounds of appeal and alterations to his legal representation. In the event the first named applicant relied on grounds 1, 3, 4 and 7 as set out above. Counsel for the first named applicant also raised a number of other matters concerning interviews of the first named applicant carried out by members of An Garda Siochana and statements made by the first named applicant which were put into evidence at the trial. Reference to these matters will be made later in this judgment.

    The second named applicant's grounds of appeal were as follows:"1. The learned trial judge erred in law or in a mixed question of law and fact and/or in the exercise of his discretion in ruling as admissible the three statements allegedly made by the appellant in Garda custody on the following grounds:-(a) The learned trial judge erred in law or in a mixed question of law and fact and/or in the exercise of his discretion in ruling that the statements of the appellant had been taken in accordance with law and in accordance with the Judge's Rules where a prosecution witness namely Detective Garda Hogan conceded that he had failed to comply with the Judge's Rules;

    (b) The learned trial judge erred in law or in a mixed question of law and fact and/or in the exercise of his discretion in ruling the statements of the applicant admissible in circumstances where conversations had taken place between the appellant and the Gardai in the absence of a legal guardian where there was a legal requirement for such a guardian pursuant to Article 13(2) of the Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Siochana stations) Regulations, 1987;2. The learned trial judge erred in law or in a mixed question of law and fact in failing to charge the jury adequately or at all as to manslaughter and as to how such a verdict might be reached in circumstances where a killing took place in the course of a joint enterprise, given that the learned trial judge informed the jury that a verdict of manslaughter was open to them, whilst expressing his view that the case raised an issue as to murder only.

  6. The learned trial judge erred in law or in a mixed question of law and fact in failing to charge the jury adequately or at all regarding section 7(2) of the Criminal Law Act 1977."

    The Evidence at the Trial

    The deceased in this case, Noel Pyper, lived in an apartment at 49 Henry Street, Limerick. He was aged 48 years at the time of his death. Noel Pyper was a barman employed in Noel's Bar which is situated in Catherine Street, Limerick. The owner of the bar, Noel O'Neill, left Mr Pyper alone there at 12.15 a.m. on the 12th August 1997. Mr Pyper was in charge of the cash when the public house was closed and at the time it was his practice to take the cash home with him. After Mr Pyper's death the money from the bar was never found and it seems clear that Mr Pyper was robbed of the money at the time of his murder.

    A number of witnesses testified to the movements of Noel Pyper after he left Noel's Bar. He was seen on Roche's Street and later near the Augustinian Church on O'Connell Street. Mr Pyper was alone at the time. Video recording evidence showed that Mr Pyper went to a takeaway on O'Connell Street called the Chicken Hut where he purchased a takeaway snack meal. He left there at 12.44 a.m.

    His body was found at 8.30 a.m. the following morning in a laneway off Newenham Street by a delivery man, Gerard Moloney, and he was later identified as the deceased by his employer, Mr O'Neill. The place where his body was found is known locally as Lonergan's Lane, off Newenham Street, and is about a nine minute walk from the Chicken Hut. Mr Pyper's body was found partially concealed between two wheeled rubbish bins at the end of this lane. At the time of the finding of the body Detective Garda Murphy found keys just inside the mouth of the laneway which were later identified as Noel Pyper's keys to his flat and to Noel's Bar.

    Evidence was given by a taxi driver, Tom McGrath, who saw three men and one woman and another man a short distance away at the mouth of the laneway at about 1 a.m.

    A forensic examination was carried out by the Gardai at the scene of the crime. Physical evidence indicated that the fatal attack started at the mouth of the laneway. Evidence describing the laneway was given by Detective Garda Brooks. He described the lane as being thirty three metres long and indicated that there were two doors from the lane into South's licensed premises - one ten metres from the roadway and the other thirty one metres from the roadway. The deceased's trousers were slightly pulled down on his hips revealing marks on his lower back through which there were directional drag lines. His head was covered in blood. His shirt was missing three buttons, two of which were found in the laneway. It was noticed that there was blood at 3.2 metres in from the road. About ten metres into the laneway the ground was heavily stained with blood. On the wall at this point at a height of 1.4 metres Detective Garda Brooks saw what appeared to be a palm print in blood. A front tooth was found in the centre of the lane and another tooth near No. 2 Newenham Street. There was a blood smear trail in the centre of the laneway leading towards the wheeled bins at the end. Detective Garda Brooks gave as his opinion that the assault took place at the entrance of the lane and that there was a further violent assault opposite the first side door into South's licensed premises. There was also evidence of a further assault at the point where the body was dumped concealed behind the wheeled bins. Photographs which were produced in evidence showed Mr Pyper's body where it was found. They also showed a takeaway snack box from the Chicken Hut which was thrown under his body. The State's case was that Mr Pyper was set upon shortly after he left the Chicken Hut while on his way home to his flat in Henry Street.

    The State Pathologist, Dr. Harbison, arrived at the scene at 4.20 p.m. on the 12th August and he observed blood stain marks and in particular a finger print on the wall of South's Bar and slash marks on the wall. He noticed drag marks in the deceased's blood. In his evidence Dr. Harbison described the deceased as having severe head injuries. His nasal bones were fractured and both lips were severely swollen and bruised with two penetrating lacerations. He had two black eyes and fractures of both cheek bones. His liver was torn. Dr. Harbison summarised his expert opinion by stating that death was caused by inhalation of blood due to multiple facial and mouth injuries including fractures of the lower jaw and cheek bones consistent with multiple blows or kicks to the face. Dr. Harbison's opinion was that the facial injuries were due to kicks based on the shape of markings on the face. At the time of his death Noel Pyper also suffered from cancer of the larynx and the tongue.

    The prosecution's...

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